Adventures in Legal Outsourcing to India and Beyond

April 2009

April 30, 2009

The following is reprinted from the April 2009 edition of the MLRC MediaLawLetter, the leading monthly news publication for media defense lawyers in the United States:

In Doe
v. HBO, Los Angeles Superior

Court Throws Out Libel-in-Fiction Case

Against Sacha Baron Cohen’s “Da Ali G Show”

Comedic Statements Could Not Be Believed,

and Plaintiff Was Libel-Proof Anyway

By
Michael Cleaver and Russell Smith

In
a decision that could benefit comedy writers, performers, television
broadcasters, and film studios across the United States, Channel Four Television
Corporation (“Channel 4”), the UK’s second largest television broadcaster and
the originator of “Da Ali G Show,” starring Sacha Baron Cohen (“Cohen”), has
defeated a libel case filed in Los Angeles by a plaintiff who sought millions
of dollars in damages, all allegedly due to the inclusion of her name in a
comedy routine.

The
plaintiff, who sued as “Jane Doe,” claimed that Cohen used her name in a comedy
“interview” by “Ali G” with the historian and author, Gore Vidal, during the
course of the television program “Da Ali G Show.”In the interview, the fictional “Ali G” asked
Mr. Vidal why there is any point in amending the U.S. Constitution, since he
(Ali G) once had a girlfriend (the plaintiff) who was constantly “amending
herself,” but to no avail.

Da Ali
G Show

“Da
Ali G Show” is a satirical television comedy in which Cohen (a white male from
the UK), under the guise of three separate, fictional alter-egos –“Ali G” (a
“wannabe” black gangsta-rapper), “Borat” (a witless journalist from Kazakhstan),
and “Bruno” (an Austrian gay fascist fashion reporter) – interviews real
people, including countless celebrities and other public figures (such as Pat
Buchanan, Boutros Boutros-Gali, Newt Gingrich, Dick Thornburgh and Donald Trump).The “interviews” involve a steady stream of ridiculous
statements and questions posed by the respective alter-egos to the interviewees.Although the television audience is
well aware that the interviewer is a fictional persona, the interviewees, at
least at the time of the interview, are not.According to the consent agreements they signed in order to appear on
television, they didn’t care.

Throughout
the program, Cohen never steps out of character, and never appears as
himself.Using his idiotic and
buffoonish Ali G persona in
particular, Cohen satirizes sexism, racism, homophobia, and what passes for
Western “youth culture.” As New York Times
columnist Maureen Dowd noted, “[w]ith his
white-gangsta-rapper-wannabe persona, Sacha Baron Cohen, a brilliant graduate
of Cambridge, sends up the vacuity of the culture.”

Background
of the Case

The Plaintiff originally sued Home Box Office, Inc.
(“HBO”), Cohen, “Da Ali G Show,” and 50 unnamed “Doe” defendants.In October of 2007, the Plaintiff was
persuaded to voluntarily dismiss the entire complaint, with prejudice, as to
all of the named defendants, in exchange for the substitution of Channel
4 as Doe Defendant No. 1.This was based
on the theory that it was Channel 4, the foreign distributor of the show, not
HBO, which licensed the specific broadcast of the show in Finland that ended up
on YouTube, with the Plaintiff’s name in it.

In her complaint, the Plaintiff alleged that the broadcast defamed her.Inthe
episode in question, during a spoof interview with Gore Vidal, Cohen’s Ali G character remarked as follows:

Ain't it better
sometimes, to get rid of the whole thing rather than amend it, cos like me used
to go out with this bitch called [Jane Doe] and she used to always be trying to
amend herself. Y'know, get her hair done in highlights, get like tattoo done on
her batty crease, y'know have the whole thing shaved – very nice, but it didn't
make any more difference. She was still
a minger and so, y'know me had enough, and once me got her pregnant me said
alright, laters, that is it. Ain't it
the same with the Constitution?

Mr. Vidal laughed,
and then responded: “Well, the Constitution has not yet become pregnant.”

The Plaintiff apparently did not laugh.Instead, she responded with a libel suit
alleging that the above statements falsely suggested that she had a sexual
relationship with Cohen, and that, because she has no children, the statements also
falsely suggested that she must have had an abortion.

The
Plaintiff claimed she was damaged by (a) former defendant HBO distributing the
allegedly offending episode of the Program at least 21 times across the United
States in August of 2004, (b) Channel 4 distributing the episode to Finland in
December of 2004, (c) HBO distributing the episode in the U.S. again in 2005,
(d) a viewer of the Finnish broadcast posting the offending segment of the episode
on YouTube in December of 2006, and (e) the Plaintiff’s public filing of the
lawsuit in 2007, which included her full name, and gave rise to a barrage of
worldwide, negative publicity concerning the Plaintiff and her claims.

Summary Judgment

Granting Channel 4’s motion for summary judgment, Los
Angeles Superior Court Judge Terry Friedman, in a pro-media ruling that
apparently is only the second libel-in-fiction decision in the television
context (the first being Frank v.
National Broadcasting Company, a New York decision dismissing a libel suit
against Saturday Night Live),
decisively threw out the lawsuit, holding as follows:

No
reasonable person could consider the statements made by Ali G on the program to
be factual. To the contrary, it is
obvious that the Ali G character is absurd, and all his statements are
gibberish and intended as comedy. The
actor, Sasha Baron Cohen, never strays from the Ali G character, who is dressed
in a ridiculous outfit and speaks in the exaggerated manner of a rap
artist.Ali G’s statements are similarly
absurd.For example, prior to the
reference to Plaintiff, while ‘interviewing’ the author Gore Vidal, Ali G
refers to the Constitution of the United States as having been written on two
tablets, clearly intended to confuse the Constitution with the Ten
Commandments.Altogether, the program is
obviously a spoof of a serious interview program.No reasonable person could think otherwise.

In
the same interview about which the Plaintiff complained, “Ali G” also states
that Moses was involved in writing the Constitution, and that author Gore Vidal
is a world-famous hair stylist (apparently mistaking Mr. Vidal for Vidal
Sassoon). Elsewhere in the same episode, Ali G states that actor Denzel
Washington lives in George Washington’s former home at Mount Vernon, that John
Paul Jones had no arms or legs, that the world is running out of gravity, that
gravity was discovered by “Sir Isaac Newton-John” after shooting an apple from
William Tell’s head, and that euthanasia refers to the killing of elderly
people by youth in Asia.

Based
on the “content of the program” (i.e., the context in which the statements were
made), the court held that the Plaintiff could not prove that the statements
declared or implied a “provably false assertion of fact,” and that the statements
were not “susceptible to [a]… libelous meaning.”Much less could the Plaintiff prove that the
statement at the core of the lawsuit, namely, that the Plaintiff had sex with a
fictional character, was factual.At
oral argument, Judge Friedman compared this allegation to a claim that a real
person could have sex with “Bugs Bunny.”

Moreover,
the Court found that the dissemination of the allegedly libelous statements by
Channel 4 could not have caused the Plaintiff further damage, beyond that allegedly
resulting from the original HBO broadcast.In finding the Plaintiff to be libel-proof
with respect to the allegedly offending statements broadcast by Channel 4, the
court noted that “[the] Plaintiff attests in discovery responses that the
damages all flow from a rebroadcast of the Program [prior to the distribution
of the episode in Finland]….Accordingly,
no other damages flow from any subsequent rebroadcast in Finland or as a result
of YouTube rebroadcasting … the Program.”

Channel
4, which incidentally developed and produced countless innovative films such as
Slumdog Millionaire, The Crying Game, Trainspotting, The Last King
of Scotland, and Four Weddings and a
Funeral, is happy not only with the result in the “Ali G” case, but also
with the low legal fees that made the defense possible.As noted by the company in an unusual press release
following the victory: “This action was fought with the litigation support
services of SDD Global Solutions, the India arm of Channel 4’s U.S. counsel,
SmithDehn LLP, in a groundbreaking case where ‘outsourcing’ has proved to be a
creative solution to running a robust defense.”

U.S.
law-trained Indian attorneys at SDD Global conducted the legal research and
drafted all of the preliminary drafts of court papers in the litigation,
including Channel 4’s motion and brief for summary judgment, which allowed
Channel 4 to fight and defeat the lawsuit, rather than settling in order to
avoid burdensome legal fees.

As
Channel 4’s general counsel noted after the decision: “US court actions are
extremely costly to run and even where a defendant wins, little if any of their
costs are recoverable from the plaintiff. As so often happens in cases like
this, the ‘chilling effect’ of the threat of substantial damages and significant
legal costs, forces defendants to settle with plaintiffs who have no
justifiable claim. However, combining the skills and expertise of US attorneys
with US law-trained Indian attorneys has proved to be an innovative and
cost-effective way for Channel 4 to fight and win the suit.”

Sanjay Bhatia, SDD Global’s
Head of Operations, commented: “This is a case where outsourcing created more
work in the U.S., rather than less. Because
our team made the defense affordable, U.S. lawyers were able to do the things
in the U.S. that they do best there, such as strategizing, supervising,
editing, and appearing in court. The implications of this case are huge. With
legal outsourcing, baseless lawsuits can be defeated on their merits, instead
of settled simply out of fear of legal fees.”

Russell Smith and Michael Cleaver of SmithDehn LLP were
lead U.S. counsel to Channel Four Television Corporation in this case.Providing crucial and cost-effective legal
research and drafting were Padmavathi Shanthamurthy, Vidya Devaiah, Preethi
Venkataramu, Ashish Kumar, and Sanjay Bhatia, U.S. law-trained Indian legal professionals at
SDD Global Solutions Pvt Ltd. in Mysore, India.